The fight against Preemption

Several months ago, we reported on a landmark achievement by the Obama Administration related to federal preemption. On May 20, 2009, President Obama reversed one of the most nefarious practices of the Bush Administration by issuing a memorandum (Preemption Memo) aimed at curbing federal preemption by regulatory fiat. With the Preemption Memo, the President made clear his intent to limit federal agencies’ efforts to preempt state law claims merely by declaring that they would conflict with federal regulatory purposes. This position represents a radical shift from that taken by the Bush Administration, which aggressively encouraged federal agencies to seek to preempt state tort law in precisely that fashion.

If you recall, the underlying premise of federal preemption is that where a clear conflict exists between a federal rule/regulation and state law claims, the federal rules govern and state law claims are preempted. For the first 150 years of government in the United States, there were relatively few occasions when the Supreme Court was called upon to examine the extent of any alleged conflict between federal and state laws. However, as our country grew, and as our federal government grew, so did federal rules and federal regulations. Within the last 20 years or so, there was a dramatic increase in the demands upon our courts to determine the extent of federal preemption of state law claims.

During George W. Bush’s Presidency, his Administration saw federal preemption as an opportunity to enact stealth tort reform. Seven federal agencies issued over 60 proposed or final rules that were accompanied by introductory statements – commonly known as preambles – stating that the rule preempts state tort law on the grounds that lawsuits involving the regulating matters would conflict with the agencies’ regulatory goals. The most notorious example of this practice was the preamble to a 2006 United States Food and Drug Administration labeling regulation, which stated that the agency’s approval of a prescription drug’s label “preempts conflicting or contrary State law,” including lawsuits seeking to hold drug manufacturers liable for failing adequately to warn of a drug’s dangers. This preemption preamble was particularly egregious because it represented a 180-degree reversal of the FDA’s prior views on the matter: before the Bush Administration took power. The FDA enthusiastically endorsed tort litigation as complementing the agency’s ability to ensure the safety of prescription drugs.

Hopefully, the Bush Administration’s aggressive practice of seeking to expand federal preemption of state tort law through regulation ended with President Obama’s Preemption Memo. But the fight is not over. Recently, the United States Supreme Court granted certiorari to determine whether one of the Federal Motor Vehicle Safety Standards (FMVSS) issued by the National Highway Traffic Safety Administration preempts a state law product liability claim. In Williamson v. Mazda Motor of America, Inc., the Plaintiff seeks to hold Mazda accountable for the death of Thanh Williamson, killed in a head-on collision when her body “jackknifed” around a lap-only seatbelt installed in the aisle seat of her family’s 1993 Mazda minivan. Although the vehicle’s other occupants had lap/shoulder seatbelts and survived the crash, there was no lap/shoulder harness installed for Thanh’s seat.

Thanh’s parents filed a lawsuit in California state court against Mazda on state tort claims, including products liability and negligence. Their Complaint alleged, in part, that Thanh’s seat should have been equipped with a lap/shoulder belt to restrain her upper torso in a frontal collision. Although lap/shoulder belts are universally understood to provide greater safety to car occupants, Mazda argued that the Plaintiffs’ claims were preempted by the FMVSS that gave Mazda the choice of installing either lap-only or lap/shoulder seatbelts in the rear-center seats of cars and in the aisle seats of minivans.

Both the trial court and the California Court of Appeals agreed, holding that, under a broad reading of Geier v. American Honda Motor Co., Standard 208 – the federal standard in question – “preempts common law actions alleging [that] a manufacturer chose the wrong seat belt option….” In Geier, the U.S. Supreme Court held that a 1984 version of Standard 208 preempted a claim that a car maker should be held liable for failing to install an airbag.

In Williamson, both the U.S. Government, through the Solicitor General, and Public Justice, have argued that Geier has been misapplied by courts across the country, allowing federal preemption in a host of areas that Congress never intended. They maintain that, to resolve the massive confusion caused by Geier, the Court should limit preemption to circumstances where Congress has explicitly said state law should be preempted, or where the state law claim would directly contradict a specific federal law mandate. Needless to say, during the Bush Administration, the U.S. Government would have never sided with the Williamson family on this preemption issue.

Clearly, Mazda should not be permitted to hide behind a preemption defense for its unsafe seatbelt. As the public well knows, a three-point restraint more effectively protects occupants compared to a lap belt only. Hopefully, the United States Supreme Court will accept the arguments of the United States Government and Public Justice and will greatly curtail the misuse of the preemption doctrine by car manufacturers. Automobile manufacturers should not be able to avoid liability for their wrongdoing in manufacturing defective products that kill and seriously injure people. If you need more information on this subject, contact Cole Portis, who heads up our firm’s Personal Injury/Product Liability Section, or Dana Taunton, a lawyer in the Section at 800-898-2034, or by email at Cole.Portis@beasleyallen.com or Dana.Taunton@beasleyallen.com.